Salem Grain Company, Inc. v. Consolidated Grain and Barge Co.

1.
Motions to Dismiss: Pleadings: Appeal and
Error. A district court's grant of a motion to
dismiss on the pleadings is reviewed de novo, accepting the
allegations in the complaint as true and drawing all
reasonable inferences in favor of the nonmoving party.

2.
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, for which an
appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
below.

5.
Vendor and Vendee. The application of the
doctrine established by Eastern R. Conf. v. Noerr
Motors,365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464
(1961), and Mine Workers v. Pennington, 381 U.S.
657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), to claims under
antitrust laws is ultimately based on the fact that antitrust
laws, tailored as they are for the business world, are not at
all appropriate for application in the political arena.

7.
Constitutional Law: Vendor and Vendee:
Conspiracy. The line to determine when the
conspiracy exception applies is based not on whether a claim
is antitrust in nature, but on which theory the application
of the doctrine established by Eastern R. Conf. v. Noerr
Motors,365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464
(1961), and Mwe Workers v. Pennington,381 U.S. 657,
85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), is predicated on,
either the First Amendment or the antitrust laws.

13.
Rules of the Supreme Court: Pleadings. An
affirmative defense may be asserted in a motion filed
pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) when the
defense appears on the face of the complaint.

14.
Appeal and Error. In the absence of plain
error, an appellate court considers only claimed errors which
are both assigned and discussed.

15.
Rules of the Supreme Court: Pleadings:
Notice. The Nebraska Rules of Pleading in Civil
Actions, like the federal rules, have a liberal pleading
requirement for both causes of action and affirmative
defenses, but the touchstone is whether fair notice was
provided.

16.
Appeal and Error. An appellate court is not
obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it.

17.
Conspiracy: Words and Phrases. A civil
conspiracy is a combination of two or more persons to
accomplish by concerted action an unlawful or oppressive
object, or a lawful object by unlawful or oppressive means.

18.
Actions: Aiding and Abetting. A claim of
aiding and abetting is that in addition to persons who
actually participate in concerted wrongful [297 Neb. 684]
action, persons who aid, abet, or procure the commission
thereof, are subject to a civil action therefor.

19.
Actions: Conspiracy: Aiding and Abetting:
Liability. Claims of civil conspiracy and aiding and
abetting are essentially methods for imposing joint and
several liability on all actors who committed a tortious act
or any wrongful acts in furtherance thereof.

20.
Aiding and Abetting: Torts. A claim of
aiding and abetting requires the presence of an underlying
tort.

21.
Conspiracy: Torts. A "conspiracy"
is not a separate and independent tort in itself, but,
rather, is dependent upon the existence of an underlying
tort. Without such underlying tort, there can be no claim for
relief for a conspiracy to commit the tort.

22.
Conspiracy: Aiding and Abetting. A statutory
violation alone is insufficient to sustain a claim of civil
conspiracy or aiding and abetting.

Salem
Grain Company, Inc. (Salem), appeals an order from the
district court for Richardson County dismissing its [297 Neb.
685] complaint with prejudice for failure to state a claim
upon which relief could be granted. The court found that all
appellees were entitled to immunity from Salem's claims
under Nebraska's Consumer Protection Act[1] (NCPA) and the
Noerr-Pennington doctrine[2] and that Salem's claims
of conspiracy and aiding and abetting required an underlying
tort to be actionable. Accordingly, the court ruled that any
amendments to the pleading would be futile. We affirm.

II.
FACTS

Salem
operates commercial grain warehouses and elevators and owns
trading businesses throughout southeast Nebraska, including a
location in Richardson County, Nebraska. Consolidated Grain
and Barge Co. (CGB) also operates commercial grain
warehouses. In 2012, CGB expressed an interest in expanding
its operations to the Falls City, Nebraska, area, and it now
owns and operates a commercial grain warehouse in Richardson
County, which is in competition with Salem's Richardson
County warehouse.

At the
time of the alleged actions, the other appellees were
involved with various organizations in Falls City: Becky
Cromer was the executive director of the Falls City Economic
Development and Growth Enterprise (EDGE), a private
organization; Gary lorn, Ray loy, and Bart Keller were
members of EDGE; Kevin Malone was a member of EDGE, the Falls
City Community Redevelopment Authority (CRA), the Citizen
Advisory Review Committee (CARB), and the Falls City Planning
and Zoning Board; Charles Radatz was a member of EDGE and the
CRA; and Beth Sickel was a member of [297 Neb. 686] EDGE, the
CRA, and the CARB. Each of these appellees were sued in their
individual capacities.

The
remaining defendants, "John Doe I-IV and Jane Doe I-IV,
" were members of EDGE, the CRA, or the CARB that may
have participated in the alleged wrongful acts against Salem.

Salem
filed a complaint alleging that each of the individual
appellees engaged in a pattern of behavior-through a series
of contracts, combinations, and conspiracies-with the intent
to deprive it of information, an opportunity to be heard, and
due process of law, which caused Salem financial damages.
More specifically, it alleged that its damages were a result
of the unfair increased competition that CGB brought to the
region through the special privileges it received from Falls
City and that the individual appellees aided and abetted in
concealing from Salem and the community those benefits.

Salem
asserts that the individual appellees' pattern of
behavior included preventing legal notice of the following
actions from being provided to Salem: the annexation of land
into Falls City; the rezoning of said land for commercial
use; the declaration of said land as blighted, which made it
eligible for tax increment financing; the approval of tax
increment financing and the issuance of at least one bond to
assist CGB; and the procurement of state and federal grants
to assist CGB. In doing so, Salem contended that the
appellees violated Nebraska's Open Meetings
Act[3]
(NOMA) and the NCPA.

As a
result of CGB's entry into the market at the end of 2012,
Salem alleged an annual loss net profit of 10 to 20 cents per
bushel for 2 million bushels per year of grain that it would
have or did handle in 2013 through 2015. During that same
period, Salem alleged an annual minimum loss of $150, 000 in
storage revenue.

[297
Neb. 687] CGB; Cromer, Joy, Keller, and Radatz; and Jorn,
Malone, and Sickel separately moved to dismiss Salem's
complaint, arguing that it had failed to state a claim upon
which relief could be granted, under Neb. Ct. R. Pldg. §
6-1112(b)(6). CGB, Jorn, Malone, and Sickel also asserted
that the appellees were entitled to immunity under the
Noerr-Pennington doctrine.

The
court ruled that Salem could not state any claim against the
appellees pursuant to the NCPA, because the appellees were
entitled to immunity, under the Noerr-Pennington
doctrine, and rejected Salem's claim that an exception to
the doctrine applied, because the appellees acted unlawfully
by violating the NOMA. The court also ruled that the
conspiracy and aiding and abetting claims required an
underlying tort to be viable. Therefore, the court dismissed
the complaint with prejudice, essentially finding any
amendment would be futile. Salem appealed.

III.
ASSIGNMENTS OF ERROR

Salem
assigns, restated and reordered, that the court erred (1) in
finding the appellees immune from suit, under the
Noerr-Pennington doctrine or otherwise; (2) in
finding that conspiracy and aiding and abetting claims are
not independent claims upon which relief can be granted but,
instead, require the allegation of an independent tort; (3)
by sustaining appellees' § 6-1112(b)(6) motions to
dismiss; (4) by denying leave to amend; and (5) by not
sustaining Salem's jury demand.

IV.
STANDARD OF REVIEW

A
district court's grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences
in favor of the nonmoving party.[4]

[297
Neb. 688] Statutory interpretation presents a question of
law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made
by the court below.[5]

V.
ANALYSIS

Salem
argues, summarized, that it and other grain warehouses in and
around southeast Nebraska were injured by CGB's entry
into the market in Richardson County, because CGB received
special economic privileges. It claims that the special
privileges provided to CGB were the result of the
appellees' conspiracy to prevent the public, and Salem
specifically, from having knowledge of the economic
development activities that the city council of Falls City
was providing. It further claims that the appellees
participated in violations of the NOMA in order to obtain
those special privileges.

As a
result, it asserts that the conspiracy to provide CGB an
unfair advantage in the marketplace by violating the NOMA was
a violation of the NCPA under §§ 59-1602 and
59-1603, which damaged Salem and created a cause of action
under § 59-1609. Further, it contends that the
appellees' conspiracy to engage in wrongful conduct-by
violating the NOMA, violating the NCPA, and withholding
information-is sufficient to sustain claims of conspiracy and
aiding and abetting. CGB argues that Salem's single
factual allegation- that it expressed an interest in opening
a grain warehouse in the Falls City area-cannot support any
claims against it. Further, the appellees contend that,
acting in their individual capacities, their actions were
nothing more than petitioning the government to offer CGB
incentives to open a location in Falls City to advance
economic development in the community.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Salem
argues that the Noerr-Pennington doctrine is a
narrow defense that applies only to antitrust claims and not
to its claims under the NCPA. It argues that &sect;&sect;
59-1602 and 59-1603 of the NCPA were modeled after the
Federal Trade Commission Act[6] (FTCA), not the Sherman
Act[7];
that the FTCA focuses on consumer rather ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.